United States v. Read-Forbes

454 F.Supp.3d 1113

UNITED STATES of America, Plaintiff,

v.Mendy READ-FORBES, Defendant.

CRIMINAL ACTION No. 12-20099-01-KHV

United States District Court, D. Kansas.

Signed April 16, 2020

Annette B. Gurney, Office of United States Attorney, Wichita, KS, Carrie Nicole Capwell, Donald Christopher Oakley, Jabari B. Wamble, Office of United States Attorney, Kansas City, KS, James A. Brown, Office of United States Attorney, Topeka, KS, for Plaintiff.

MEMORANDUM AND ORDER

KATHRYN H. VRATIL, United States District Judge On April 23, 2015, the Court sentenced defendant to 240 months in prison. This matter is before the Court on defendant's Motion For Sentence Reduction Under [ 18 U.S.C. Section] 3582(C)(1)(A)(i) And Emergency Release Due To The Coronavirus (Doc. #375) filed April 10, 2020. On April 13, 2020, the government filed its opposition brief. See Government's Response To Defendant's Motion For Compassionate Release Under The First Step Act (Doc. #377). Because of the emergency nature of defendant's motion, the Court decides defendant's motion without a reply brief. For reasons stated below, the Court dismisses defendant's motion without prejudice for lack of jurisdiction.

Factual Background

On January 23, 2013, a grand jury returned an indictment which charged defendant with conspiracy to commit money laundering, 16 counts of laundering the proceeds of drug transactions, conspiracy to possess with intent to distribute marijuana and possession with intent to distribute marijuana. See Superseding Indictment (Doc. #78). On March 18, 2015, defendant pled guilty to one count of conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h). Plea Agreement (Doc. #204). On April 23, 2015, the Court sentenced defendant to 240 months.

Defendant appealed. On August 31, 2015, the Tenth Circuit granted the government's motion to enforce the appeal waiver in the plea agreement and dismissed the appeal. See Order And Judgment (Doc. #254).

On September 24, 2015, defendant filed a pro se motion to vacate her sentence under 28 U.S.C. § 2255. See Motion Under 28 U.S.C. § 2255 (Doc. #255). The Court subsequently granted defendant leave to file an amended Section 2255 motion which asserted a single claim that counsel provided ineffective assistance. See Amended Motion To Vacate, Set Aside Or Correct A Sentence Under 28 U.S.C. § 2255 (Doc. #312). On August 30, 2017, the Court overruled defendant's motion to vacate. See Memorandum And Order (Doc. #339). Defendant did not appeal.

On September 3, 2019, defendant filed a second Section 2255 motion which asserted that the government violated her Sixth Amendment right to speak confidentially with counsel free from government interference. See Motion Under 28 U.S.C. § 2255 (Doc. #354) at 4. On November 21, 2019, the Court dismissed defendant's motion for lack of jurisdiction. See Memorandum And Order (Doc. #363). Defendant appealed and that appeal remains pending. See Tenth Circuit No. 19-3268.

On December 6, 2019, defendant filed a Petition For Writ Of Audita Querela Or Other Appropriate Relief Pursuant To The All Writs Act (Doc. #366), which asserted a Sixth Amendment claim that was substantially similar to the claim that she had raised in her second Section 2255 motion. Because of defendant's pending appeal of the Court's ruling on her second Section 2255 motion, the Court stayed consideration of defendant's petition for a writ of audita querela. See Memorandum And Order (Doc. #374) filed February 5, 2020.

Defendant is currently confined at FMC Carswell, a federal medical center in Fort Worth, Texas. Defendant's present motion seeks compassionate release because of the Coronavirus Disease-2019 ("COVID-19") pandemic that potentially "will kill many inmates due to their close quarters." Motion For Sentence Reduction (Doc. #375) at 4. Defendant asserts that even before the current pandemic, she had difficulty accessing medical care at FMC Carswell to treat numerous ailments. Defendant states that she suffers from pernicious anemia, high blood pressure, depression, anxiety, post-traumatic stress disorder, borderline personality disorder, three ovarian tumors and is waiting treatment for "hernia mesh removal that is cutting lesions into her liver." Id. at 5. Defendant asserts that based on the close quarters at FMC Carswell, she is at high risk of contracting COVID-19 and suffering undue harm or death. Id. at 2.

Analysis

A federal district court may modify a defendant's sentence only where Congress has expressly authorized it to do so. See 18 U.S.C. § 3582(b) – (c) ; United States v. Blackwell, 81 F.3d 945, 947 (10th Cir. 1996). Congress has set forth only three limited circumstances in which a court may modify a sentence: (1) upon motion of the Director of the Bureau of Prisons or defendant under Section 3582(c)(1)(A) ; (2) when "expressly permitted by statute or by Rule 35;" and (3) when defendant has been sentenced "based on a sentencing range that has subsequently been lowered by the Sentencing Commission." 18 U.S.C. § 3582(c).¹ Defendant seeks compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i) or, alternatively, home confinement under the Coronavirus Aid, Relief, and Economic Security Act ("CARES Act"), Pub. Law 116-136 (enacted March 27, 2020). For reasons stated below, the Court lacks jurisdiction to grant relief under either statutory authority.

I. Jurisdiction To Grant Relief Under 18 U.S.C. § 3582(c)(1)(A)(i)

Under the First Step Act of 2018, Pub. Law 115-391 (S. 756), 132 Stat. 5194 (enacted

Dec. 21, 2018), after considering the factors set forth in section 3553(a) to the extent that they apply, the Court may order compassionate release for "extraordinary and compelling reasons." 18 U.S.C. § 3582(c)(1)(A)(i). The Court may entertain requests for compassionate release only upon a motion of the Bureau of Prisons ("BOP"), however, or of defendant after defendant "has fully exhausted all administrative rights to appeal a failure of the [BOP] to bring a motion on the defendant's behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier." 18 U.S.C. § 3582(c)(1)(A).

Initially, the Court examines whether the foregoing exhaustion requirement is jurisdictional or merely a claims-processing rule. See Henderson v. Shinseki, 562 U.S. 428, 435, 131 S.Ct. 1197, 179 L.Ed.2d 159 (2011) (stressing distinction between jurisdictional prescriptions and nonjurisdictional claim-processing rules, which "seek to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified times"). Absent clear congressional intent that a prescription is jurisdictional, "courts should treat the restriction as nonjurisdictional in character." Fort Bend Cty., Texas v. Davis, ––– U.S. ––––, 139 S. Ct. 1843, 1850, 204 L.Ed.2d 116 (2019) (quotation marks and citation omitted). To determine congressional intent, the Court examines the "text, context, and relevant historical treatment" of the statutory provision. Musacchio v. United States, ––– U.S. ––––, 136 S. Ct. 709, 717, 193 L.Ed.2d 639 (2016) (quoting Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 166, 130 S.Ct. 1237, 176 L.Ed.2d 18 (2010) ).

The Tenth Circuit has not addressed whether the administrative exhaustion requirement under Section 3582(c)(1)(A), which Congress added in 2018, is jurisdictional. Even so, the "text, context, and relevant historical treatment" of Section 3582(c) ’s various subsections suggest that Congress intended that courts treat the exhaustion requirement as jurisdictional. Before identifying certain exceptions, Section 3582(c) starts with an initial presumption that a "court may not modify a term of imprisonment once it has been imposed." 18 U.S.C. § 3582(c). As a textual matter, the provisions of Section 3582(c) operate as a "clear and mandatory restriction on a court's authority." United States v. Spaulding, 802 F.3d 1110, 1122 (10th Cir. 2015) (quoting United States v. McGaughy, 670 F.3d 1149, 1158 (10th Cir. 2012) (further citations omitted)). In other words, the statute "speak[s] to the power of the court rather than to the rights or obligations of the parties," which suggests that its administrative exhaustion requirement is jurisdictional. Landgraf v. USI Film Prods., 511 U.S. 244, 274, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994) (quotation marks and citation omitted); see Spaulding, 802 F.3d at 1124 ( Section 3582(c) is jurisdictional limitation on ability of district courts to alter sentence of imprisonment).

In the context of motions under subsections of Section 3582(c) other than subsection (c)(1)(A), the Tenth Circuit has held that defendant's eligibility for a sentence reduction is jurisdictional. See United States v. White, 765 F.3d 1240, 1250 (10th Cir. 2014) (if defendant ineligible under Section 3582(c)(2), dismissal for lack of jurisdiction appropriate); McGaughy, 670 F.3d at 1158 ( Rule 35(a) ’s 14-day time limit, which Section 3582(c)(1)(B) incorporates by reference, is jurisdictional limitation). Unlike the other subsections, a defendant's eligibility for relief under subsection (c)(1)(A) includes a requirement that defendant exhaust administrative remedies. Even so, for determining whether the administrative exhaustion requirement of subsection (c)(1)(A) is jurisdictional, the Court sees no reason to treat that subsection's requirements any differently. Based on the "text, context, and relevant historical treatment" of Section 3582(c), the Court treats as jurisdictional the administrative exhaustion requirement in subsection (c)(1)(A). Musacchio v. United States, 136 S. Ct. at 717 ; see United States v. Boyles, No. 18-20092-JAR, 2020 WL 1819887, at *2–3 (D. Kan. Apr. 10, 2020) ( Section 3582(c)(1)(A) exhaustion requirement jurisdictional); United States v. Johnson, No. CR-RDB-14-0441, 2020 WL 1663360, at *4 (D. Md. Apr. 3, 2020) (same); United States v. Perry, No. 18-CR-00480-PAB, ...